Abuser Andrew Lee Clark, Scout leader had pleaded guilty to attempted buggery and indecent assaults. There were at least 2 victims, one was aged 11-13. The offences committed 1997-99, geographical area and scout group unclear but court was Chichester, West Sussex and Chessington is Greater London.

Appeal against sentence succeeded as the sentence was it was deemed too harsh as the full buggery offence was not completed.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance – normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive. Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

1. MR JUSTICE TOMLINSON: This appellant, a 36 year old man, pleaded guilty on 16th December 1999 in the Crown Court at Chichester to an indictment which contained four counts of indecent assault and three counts of attempted buggery. The offences spanned a period of 2 years, between October 1997 and October 1999. The victim of each of the indecent assaults and each attempted buggery was the same boy, who we will call simply D, who in October 1997 was just 11 and by the time of the last offence was just 13. We take this opportunity to underline that the anonymity of this boy is protected by section 1 of the Sexual Offences (Amendment) Act 1992, which makes it an offence to publish his name or address or any matter which might lead to his identification.

2. One further offence on another boy, A, committed in September 1997, when that boy was 12, was taken into consideration. The observations we have just made about the boy, D, apply equally to the boy, A.

3. His Honour Judge Thorpe imposed concurrent sentences of 3 years’ imprisonment on the indecent assault counts and 7 years’ imprisonment on the attempted buggery counts leading to a total term of 7 years. The learned judge made an order for extended supervision pursuant to section 4 of the Criminal Justice Act 1991.

4. The appellant now appeals against sentence with leave of the Single Judge.

5. It is submitted on his behalf that a sentence of 7 years’ imprisonment, for three offences of attempted buggery was manifestly excessive and therefore wrong in principle.

6. The facts may be very briefly summarised. The appellant was a friend of the victim’s parents. The boy D was the eldest child and the appellant was Godfather of the third child. His contact with the boy D began when D was about seven or eight. He would visit his home, take him to the park, take him shopping, take him to amusement or leisure parks such as Chessington, and also to his home and his parents, the appellant’s parents’ home. He also had contact with D through a cub scout group and later at a boy scout camp at which the appellant was present in his capacity as a scout leader.

7. The offence taken into consideration likewise occurred at scout camp.

8. The offences of indecent assault to which the appellant pleaded guilty included masturbation of the boy to ejaculation, fellatio of the boy and fondling both over and under the clothing.

9. The three counts of attempted buggery arise out of unsuccessful attempts by the appellant to insert his penis into the boy’s anus. It is accepted by the appellant that on these occasions he attempted to penetrate the boy. The most favourable way in which it can be put is that on each occasion the boy flinched or otherwise indicated that he was not enjoying the experience, in consequence of which the appellant, after about a minute, desisted from further attempts.

10. These offences came to light when in October 1999 D’s mother came home and found the appellant actually in the act of fondling the boy’s penis over his clothing. Later that day the boy told his mother what had been happening and three days later the police were informed. When interviewed the boy told the police the appellant had told him to keep secret what had been happening because he, the appellant, would probably, if it became known, be put into jail.

11. When arrested and interviewed the appellant made full and frank admissions. He said that the assaults took place in his own home, at his parents’ home, in his car, at a scout camp and on one occasion in the lavatories at Gatwick Airport, where he worked. As we have described, offences took place also at the boy’s own home, including the last described incident, which formed the basis of count 7. The appellant expressed deep remorse.

12. The effect upon the boy of this prolonged campaign of systematic abuse needs hardly to be laboured. There was before the sentencing court a psychiatric report upon the appellant. In it the consultant psychiatrist remarked that it is likely that the sexual abuse of D has affected him much more profoundly than is the appellant’s perception and that it may account for his reportedly being a challenging child. The damage done will no doubt be all the worse for having been inflicted by a trusted family friend and a person enjoying the authority and status of a scout leader. This Court can only imagine the difficulty which a boy treated in this way must now experience in forming normal stable emotional relationships with adults and persons in similar authority.

13. Similarly this Court, whilst it can and of course does sympathise with the parents whose son has been abused and whose future emotional development may have been blighted, can nonetheless only begin to comprehend the very great distress which must have been caused to them by this course of conduct, perpetrated by their trusted friend and Godfather to one of their own children.

14. The same consultant psychiatrist described this appellant as a homosexual paedophile who has an erotic attraction towards boys. He had, he said, displayed grooming behaviour towards D; that is he sought to foster an intimate relationship by providing D with emotional support, friendship, childhood excitement, such as trips to Chessington and Gatwick etcetera and presents. The incident which led to the offence taken into consideration which occurred in October 1997 had attracted allegations at the time. A suspension from the scouts and questioning by the police, although no charges were in the event brought. But this incident in October 1997 had not caused the appellant to desist. He went on to abuse D sexually over a long period. The probation officer in his pre-sentence report regarded him as a potential risk to children, notwithstanding he himself was adamant he would not re-offend.

15. The most weighty mitigation available to this appellant was of course his full and frank admission of guilt at the first opportunity and his remorse. He was of previous good character. He had apparently suffered serious sexual abuse as a child himself at the hands of his elder brother. At the time of the offences he was undergoing difficulties in his marriage apparently as a result of difficulties in conceiving although by the time of his arrest he had two children. He was evidently over-extended financially which no doubt gave rise to further stress.

16. Realistically, however, Mr Pezzani, for the appellant, while he emphasises the emotional stress as a potential mitigating feature, does not seek to suggest that these weigh very heavily in the scales. As we have indicated, the real mitigation in this case is the guilty plea and the expression of remorse.

17. Mr Pezzani’s starting point is the decision of this Court in R v Willis[1975] 1 WLR 292 , where Lawton LJ stated that in the absence of both aggravating and mitigating factors the correct bracket for the offence of buggery committed between an adult and a child under the age of 16 is 3 to 5 years.

18. Mr Pezzani accepts, however, that there were here present considerable aggravating factors. Those include, in our judgment, emotional and psychological injury to the victim, the use of gifts to corrupt the victim, the abuse of both trust and authority, the grooming nature of the appellant’s behaviour towards D as described by the psychiatrist, the length of time over which the offences were committed and of course the age of the victim. Whilst Lawton LJ spoke of emotional stress as being a mitigating factor, we cannot, for our part, regard the sort of stress to which this appellant was apparently subject as weighing very heavily in his favour.

19. Mr Pezzani also suggested that Lawton LJ’s guidelines related only to the actual offence of buggery not to the failed attempt to bugger. The fact that the actual full offence was not committed must therefore, he submitted, necessarily attract a lesser sentence than would otherwise have been imposed.

20. Of course in every case it must be a question of fact and degree. Very often an attempt will attract the same sentence as would the completed offence. However, the offence of buggery is perhaps one in respect of which it is particularly appropriate to take into account the distinction between an attempt to commit the full offence and the commission of the full offence itself. It may well often be the case that an attempt will result in a lesser trauma or injury than the completed act. We stress, however, that there can be no hard and fast rule, but nonetheless we do take into account and we do regard as relevant the fact that in the instant case it would appear that this appellant desisted once it became apparent to him that the boy was not enjoying the experience.

21. Finally, Mr Pezzani referred us to the case of R v Stepton[1998] 2 Cr App R(S) 319 , and suggested that because in that case the appellant, a man of good character, pleaded guilty to three counts of rape of a 9 years old boy and received in the event concurrent sentences of 7 years, so it followed that for the same number of attempts to bugger the sentence must be less. However that case of course lacked the element of gross breach of trust which is present in the instant case.

22. Looking at the matter in the round, however, we are satisfied that the overall sentence imposed by the learned judge was here too long. It seems to us that, in all the circumstances, whilst a very substantial sentence was inevitably called for, having regard to the particular features to which we have referred and, in particular, the fact that this appellant did not persist in his attempts to bugger the boy, once it became apparent that the boy wished him to desist, that in all the circumstances an appropriate sentence on the counts of attempted buggery would be one of five-and-a-half years rather than the 7 years imposed by the learned judge. To that extent therefore and to that extent only, this appeal succeeds. We quash the sentences of 7 years and substitute therefor concurrent sentence of 5 and a half years. We do, however, take the view that the learned judge was perfectly correct to impose an extended supervision order under the provisions of section 44 of the Criminal Justice Act 1991 and that aspect of his sentence will stand.